Savannah Bank & Trust Co. of Savannah v. Shuman, 18725

Decision Date13 November 1967
Docket NumberNo. 18725,18725
CourtSouth Carolina Supreme Court
PartiesSAVANNAH BANK AND TRUST COMPANY OF SAVANNAH, Respondent, v. Marie S. SHUMAN, Appellant.

James P. Harrelson, Walterboro, for appellant.

Buist, Buist, Smythe & Smythe, Charleston, Holland Smith, Hampton, for respondent.

BUSSEY, Justice:

This is an action for the foreclosure of a mortgage on certain real property in Hampton County, South Carolina, owned by the defendant-appellant, the appeal being from a decree of foreclosure. This court would be fully warranted in dismissing the appeal for failure to comply with the rules of this court. In violation of Rule 8, Section 2, appellant's brief is not preceded by a statement of the questions involved. The appellant's exceptions, other than that numbered one, are in clear violation of Rule 4, Section 6, in more than one particular. The respondent, however, makes no point of appellant's failure to comply with the rules of this court, and we have in the past, as a matter of grace, waived the requirement of Rule 8, Section 2. See Cooley v. Cooley, 222 S.C. 513, 73 S.E.2d 712. Additionally, the breach of Rule 4, Section 6, has occasionally been waived where a faulty exception has attempted to present a meritorious assignment of error. See Aaron v. Hampton Motors, Inc., 240 S.C. 26, 124 S.E.2d 585. Appellant's exceptions 2, 3 and 4 at least attempt to present a single meritorious assignment of error, which we shall, as a matter of grace, consider in addition to the question presented by exception one.

For the consideration and disposition of the two questions involved only a relatively brief statement of the facts is necessary. The respondent is a Georgia corporation located and doing business in the City of Savannah. Appellant is a married woman, she and her husband being residents of Hampton County, South Carolina. Appellant's husband negotiated a loan from the bank in the amount of $24,000.00, for the purpose of purchasing certain equipment for use in his business. The loan was made jointly to the husband and wife, being evidenced by a joint note, signed by both of them, the mortgage securing the same being signed only by the wife as the real estate was in her name. Both note and mortgage were executed in Hampton County, South Carolina, and delivered to the respondent in its banking office in Savannah, Georgia, for acceptance, the bank being fully aware of the purpose of the loan, and upon the authority of the appellant wife, disbursing all proceeds to the husband. The note called for interest at the rate of 8% Per annum, which is a legal rate of interest in Georgia, but which rate is usurious under the provisions of Section 8--3 of the 1962 Code of Laws of South Carolina.

Upon default in the payment of the note, the principal balance remaining due thereon was in the amount of $17,548.88.

The cardinal question involved in this case is whether the transaction between the parties is governed by the law of South Carolina or by the law of Georgia. It is the contention of the appellant that the matter is governed by Georgia law, and that under Georgia Code Sections 53--502 and 53--503, the entire transaction was void as to the appellant because the transaction was a contract of suretyship for her husband.

The case was referred to a special referee who took the testimony and filed his report, in which he concluded that the case was controlled by Section 45--56 of the 1962 Code of Laws of South Carolina, and that respondent was entitled to foreclose the mortgage, but was not entitled to any interest or costs by virtue of the usury statute, Section 8--5 of the 1962 Code of Laws, his report being confirmed by a decree of the circuit court.

Assuming, without necessarily deciding, that, as contended by the appellant, the contract was not completed until the note and mortgage were accepted by the bank in Savannah, and hence made in Georgia, that it was to be performed in Georgia, and that it was a contract of suretyship and, therefore, void under the law of Georgia, we think the special referee and the lower court were correct in concluding that the rights of the parties are controlled by South Carolina Code Sections 45--56 and 8--5. Recent codifications of Code Section 45--56 have eliminated a comma which appears in the statute as originally enacted, and hence we quote from the original statute, Acts of the General Assembly 1898, 747, as follows:

'An Act to construe contracts secured by mortgages of real estate situate within this State.

'Section 1. Be it enacted by the General Assembly of the State of South Carolina, All contracts secured by mortgage ...

To continue reading

Request your trial
2 cases
  • Decker, Matter of, 24272
    • United States
    • United States State Supreme Court of South Carolina
    • July 6, 1995
    ...provision or part shall be rendered surplusage, or superfluous...." 82 C.J.S. Statutes § 346. See also Savannah Bank & Trust Co. of Savannah v. Shuman, 250 S.C. 344, 157 S.E.2d 864 (1967). Had the legislature intended the statute to apply in circumstances in which the trial court seeks disc......
  • State v. Graves, 20509
    • United States
    • United States State Supreme Court of South Carolina
    • September 12, 1977
    ...provision or part shall be rendered surplusage, or superfluous . . . ." 82 C.J.S. Statutes § 346. Savannah Bank & Trust Co. of Savannah v. Shuman, 250 S.C. 344, 157 S.E.2d 864 (1967). In its present form Section 56-5-2930 proscribes only the conduct of "driving any vehicle within the State"......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT